On 28 August 1969, the plaintiffs' ship Dionisis L collided with the defendants' ship Owenbawn on the River Severn, UK. By January 1970, parties had exchanged guarantees issued by their clubs. The plaintiffs' solicitors were Waltons & Co (Waltons). The defendants' solicitors were Norton Rose, Botterell & Roche (Nortons).

On 10 September 1970, Waltons wrote to Nortons suggesting a meeting to discuss the case. Despite Waltons' repeated reminders, Nortons took five months to obtain instructions. This delay was partly due to the defendants' losing their file. On 18 February 1971, a meeting was arranged. On 24 February 1971, the meeting took place. The plaintiffs' claim was stated to be about GBP 5,000 and the defendants' cross-claim was stated to be about GBP 1,500. Nortons proposed a settlement where each side abandoned their claim and bore their own loss. Waltons asked to obtain instructions.

On 30 June 1971, Waltons suggested a further meeting and stated that they were issuing a writ against the Owenbawn 'to protect the two year time limit', which would expire on 28 August 1971 under s 8 of the Maritime Conventions Act 1911 (UK) (the MCA). On 1 July 1971, Nortons replied saying that they would obtain instructions.

On 2 July 1971, Waltons issued the writ in the present action but did not serve it immediately. On 23 August 1971, Nortons asked to have a further discussion. On 27 August 1971, Nortons issued a writ but did not serve it immediately. On 15 September 1971, the parties' solicitors met. Waltons proposed a settlement on a 'both equally to blame' basis, which would have resulted in a payment by the defendants to the plaintiffs of around GBP 1,750. Nortons asked to obtain instructions. There was again a substantial delay on the defendants' side (four months) despite reminders from Waltons. On 25 January 1972, Waltons stated:

[U]nless some progress is achieved in the very near future we have very little doubt that we shall be instructed to serve the Writ which was issued last year to protect the time limit.

On 26 January 1972, Nortons replied that they were unable to act without the defendants' instructions. On 3 February 1972, Nortons requested a further discussion. At the meeting on 16 February 1972, Nortons proposed, to avoid the costs of litigating relatively small claims, a settlement on the basis that the Dionisis L was three-fourths to blame and the Owenbawn was one-fourth to blame. Waltons asked to obtain instructions.

The delay now was on the plaintiffs' side. There was no further communication between the solicitors until 10 July 1972, when Nortons sent a reminder to Waltons. By then, the plaintiffs' writ had expired and, subject to the possibility of the plaintiffs' obtaining an extension of time under MCA s 8, they were out of time for issue of another writ. On 12 July 1972, Waltons stated that they were instructed not to take any further action for the time being because repairs to the Dionisis L were effected recently and the claim could be quantified accurately 'within the next week or so'.

About the beginning of August, Waltons became aware that the plaintiffs' writ had expired. On 3 August 1972, Waltons applied ex parte to the Admiralty Registrar for renewal of the writ. The affidavit explained:

The reason why no earlier application has been made for renewal is because firstly the parties have been in negotiation and the question of serving Writs has never arisen and secondly because I had erroneously assumed that the Writ herein had been issued in August 1971 and had not therefore expired ...

The Registrar renewed the writ until 27 August 1972. This is the same date as that on which the defendants' cross-writ, issued on 27 August 1971, was due to expire. It is also the last day but one of the three-year period made up of the two-year time limit and a period of 12 months for serving a writ. On 22 August 1972, parties served their writs.

The defendants applied to set aside the renewal and the service of the writ. Nortons' affidavit claimed that:

The failure of the Plaintiffs to serve the writ before its expiry was not caused by the fact that any negotiations were continuing. There had been no negotiations between the parties since the 15th February. 

The sole issue was whether the writ was properly renewed or not. Case law relating to two matters were cited: renewal of a writ and extending time under MCA s 8. The plaintiffs' main argument was that the parties were acting on the basis of an implied agreement that litigation should be deferred until after it had become clear that no global settlement could be reached. The defendants argued that it did not agree to defer service of the writ, and that no action on behalf of the defendants were calculated to lead the plaintiffs to suppose that they need not serve the writ.

Held: Application dismissed.

The Admiralty Registrar rightly renewed the writ. If the writ was wrongly renewed as the defendants contend, then the service or the writ as renewed should be set aside. But if the writ was properly renewed, then the service should stand.

Very similar considerations apply to whether the Court in a case of this kind is asked to renew a writ, or whether it is asked to extend the time under MCA s 8. In re Chittenden, decd [1970] 1 WLR 1618 (Chittenden) 1624 stated:

[I]f the defendant himself had brought about the delay [it is] immaterial whether the delay resulted from the defendant asking the plaintiff to withhold service or from his agreeing with the plaintiff that service should be withheld. In each case, the defendant was party to service being withheld, and without his being party to the delay the originating process was liable to be duly served. The purpose of refusing to exercise the discretion in the plaintiff's favour, on the ground that otherwise the defendant would have the benefit of the Statute of Limitation, is … to ensure that benefit to the defendant. So, if [the defendant] is a party to the withholding of service of the originating process … to the extent to which the withholding to which he is a party overruns the period of statutory limitation, the court should not be concerned in the exercise of its discretion to ensure to him the advantage of that statutory limitation. 

Cases after 1965 did not lead to a different conclusion.

There are perhaps three kinds of situations there contemplated in which it would be just to renew a writ. First, there was an express agreement between the parties deferring service of a writ; second, where such agreement was implied; and third, cases where there was conduct by the defendant leading the plaintiff to suppose it would be all right to defer service of the writ, with the result that the defendant can be said to have been a party to the delay in serving the writ even though there is no express or implied agreement.

The burden is on the plaintiffs to satisfy the Court that a departure from the general rule, that renewal of a writ is not to be allowed when it takes away a defence of limitation, is justified. In the end, however, the matter does not depend on burden of proof, but on what is a fair interpretation of the negotiations. It is right to bear in mind several matters which form the background of the negotiations. The first matter was that there is apparently no serious dispute about the primary facts relating to the collision. This is not a case where, if trial were delayed, there would be difficulty in investigating the facts. The second matter was that both sides had, at an early stage, exchanged guarantees on the basis that in due course, if necessary, solicitors would accept service of proceedings. The third matter was that the claims were relatively small in relation to the costs of a collision action. These matters are part of the background, but none of them by themselves could constitute good reason for departure from the general rule.

The correspondence revealed an agreement that service of the plaintiffs' writ should be deferred so long as negotiations were continuing. On the evidence, negotiations were continuing. Alternatively, there was conduct by the defendants in response to conduct by the plaintiffs of such a character as to lead a reasonable solicitor acting for the plaintiffs to believe that service of the writ could be deferred.

The defendants argued that if there was any agreement for deferring service of the writ, or any conduct encouraging deferment of the service of the writ, then it was only deferment for a while and not deferment beyond the date when the writ expired. The Court rejected that argument. Once that there was an agreement to defer, then it is obvious that the agreement to defer was related to the continuance of negotiations and to nothing else. What was really agreed or understood was that, so long as negotiations were alive, it was not necessary to serve the plaintiffs' writ. The Court rejected the defendants' argument that such understanding was not reflected in Waltons' affidavit before the Admiralty Registrar.

The plaintiffs' alternative argument was that it would be unjust in light of the defendants' conduct to allow the defendants to prosecute their cross-claim while the plaintiffs were barred from prosecuting their claim. If the defendants had intended to prosecute their claim, then such argument has great force. But the Court rejected this argument because it accepted the defendants' assurance that their writ was not served with a view to prosecuting the cross-claim unless the Court decided on this application that the renewal of the plaintiffs' writ should stand. The defendants were only serving their writ to preserve their position under MCA s 8, in the event of the plaintiffs' being allowed to go on with their claim. Accordingly, it would not be right to treat the service of the defendants' writ as a waiver of the right to rely on the plaintiffs' writ having expired.